175 F.

3d 915

Clarence Edward HILL, Petitioner-Appellant,

v.
Michael W. MOORE, Secretary, Florida Department of
Corrections, Respondent-Appellee.
Nos. 93-2616, 97-2140.

United States Court of Appeals,

Eleventh Circuit.
May 14, 1999.

Carolyn M. Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs,

Tallahassee, FL, for Moore.
Gregory C. Smith, Capital Collateral Counsel-Northern Region,
Tallahassee, FL, Gail E. Anderson, Sp. Asst. CCRC, Greensboro, FL, for
Hill.
Appeals from the United States District Court for the Northern District of
Florida.
Before HATCHETT, Chief Judge, and TJOFLAT and EDMONDSON,
Circuit Judges.
TJOFLAT, Circuit Judge:

In these consolidated appeals, the petitioner, a Florida death row inmate, asks
that we reverse the district court's refusal to grant a writ of habeas corpus either
setting aside his conviction or his sentence for murder. We affirm.

I.
A.
2

In the early afternoon of October 19, 1982, after stealing a pistol and an
automobile, petitioner and an accomplice, Cliff Jackson, robbed a savings and
loan association in Pensacola, Florida. When police arrived at the scene and

foiled their robbery plans, petitioner and Jackson fled. Jackson exited the
savings and loan through the front door and was immediately apprehended. As
the police placed Jackson in custody, petitioner, who had fled through the rear
of the building, approached the arresting officers from behind and shot them,
killing one officer and wounding another. A gun battle ensued, during which
police shot petitioner five times. Though wounded, petitioner fled the scene.
The police apprehended him a short time later.
3

Following his arrest, an Escambia County grand jury indicted petitioner on one
count of first degree murder, one count of attempted first degree murder, three
counts of armed robbery, and one count of possession of a firearm during a
felony.1 A petit jury found him guilty on all counts. Because the State sought
the death penalty on the murder count, the jury, after returning its verdicts,
reconvened for the sentencing phase of the case. At the conclusion of that
proceeding, the jury recommended that petitioner be sentenced to death. At the
sentencing hearing held at a later date, the trial judge followed the jury's
recommendation and imposed a death sentence.2

On direct appeal, the Florida Supreme Court affirmed petitioner's convictions,

but vacated his death sentence and remanded the case for a new sentencing
proceeding because the trial judge failed to dismiss a juror who was
predisposed to recommend a death sentence. See Hill v. State, 477 So.2d 553,
557 (Fla.1985). On remand, a new judge empaneled a jury and the sentencing
phase of the case was relitigated. The new jury, like its predecessor,
recommended the death sentence. At the ensuing sentencing hearing, the court
followed the jury's recommendation and imposed the death penalty.3

Again petitioner appealed his sentence of death, but this time the Florida
Supreme Court affirmed. See Hill v. State, 515 So.2d 176 (Fla.1987). The court
did so although the evidence did not support one of the aggravating
circumstances--that the murder was cold, calculated, and premeditated. Given
the existence of the four other aggravating circumstances and one statutory
mitigating circumstance (petitioner's age), the trial judge's consideration of the
erroneous factor was "not such a change under the circumstances of this
sentencing proceeding that its elimination could possibly compromise the
weighing process of either the jury or the judge." Id. at 179.

After unsuccessfully petitioning the United States Supreme Court for a writ of
certiorari, petitioner moved the trial court, pursuant to Fla. R.Crim. P. 3.850, to
vacate his capital conviction and sentence. He contended that his conviction
and sentence should be set aside because of constitutional errors committed by
the trial court and the Florida Supreme Court, and because his trial attorneys

had rendered ineffective assistance of counsel in both guilt and sentencing

phases of his case. The trial court summarily denied relief with respect to
petitioner's claims of trial court and supreme court error on the ground that
those claims were procedurally defaulted (for failure to raise those claims on
direct appeal). As for petitioner's ineffective assistance of counsel claim, the
court concluded that petitioner's allegations, when considered in the light of the
record of his prosecution, were insufficient as a matter of law. The court
therefore denied relief on that claim without holding an evidentiary hearing. On
appeal, the Florida Supreme Court affirmed. See Hill v. Dugger, 556 So.2d
1385 (Fla.1990).
7

At that point, petitioner repaired to the United States District Court for the
Northern District of Florida for relief. He petitioned that court to grant a writ of
habeas corpus setting aside his murder conviction and corresponding death
sentence. His petition presented several claims for relief.4 The district court
denied relief with respect to the conviction but issued the writ with respect to
the sentence.5 The court held that the trial judge, in sentencing petitioner, failed
to recognize as mitigating evidence several aspects of petitioner's background.6
Thereafter, the Florida Supreme Court, in affirming petitioner's sentence on
harmless error grounds, failed to cure this error by acknowledging the presence
of such mitigating factors and placing them in the sentencing balance; that is,
by determining whether the aggravating circumstances outweighed the
mitigating circumstances (in addition to the statutory mitigating factor, age,
which the trial court found). As the district court noted, Parker v. Dugger, 498
U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), requires that a reviewing
court in a "weighing" jurisdiction, such as Florida, engage in such weighing,
and explicitly state that it is doing so in determining whether the trial court
would have imposed the death sentence had it considered the mitigating
evidence.

The State appealed the district court's decision regarding the death sentence;
petitioner cross-appealed the court's denial of relief on other grounds (with
respect to both his murder conviction and his sentence). While the appeal was
pending, the State dismissed its appeal, and petitioner moved the Florida
Supreme Court to reopen his direct appeal. We stayed our consideration of
petitioner's cross-appeal pending the supreme court's decision.

The Florida Supreme Court reopened petitioner's appeal from his death
sentence, limiting its review to the question whether it had conducted the
proper harmless error analysis in affirming petitioner's death sentence. The
court affirmed the sentence. Following that decision, petitioner filed an
amended habeas petition in the district court, challenging the supreme court's

decision affirming his sentence. The district court, concluding that the supreme
court had satisfied the dictates of Parker, denied relief. Petitioner now
appeals.B.
10

As noted above, petitioner's habeas petition to the district court presented

eighteen constitutional claims. The district court rejected some of the claims
without reaching the merits because they had been defaulted: petitioner
presented the claims in his Rule 3.850 petition for post-conviction relief
without first having raised them on direct appeal. Of the claims the district
court considered, but rejected on the merits, six are before us on appeal. One
claim questions the court's refusal to set aside petitioner's murder conviction;
the rest concern his sentence. Before addressing these claims, we consider
petitioner's argument that the district court's reasoning in rejecting some of his
claims on the basis of procedural default was fallacious, and that the court
therefore should have entertained the claims on the merits.

11

Petitioner's argument is based on the notion that the Florida Supreme Court
incorrectly limited the scope of his reopened direct appeal from his sentence. In
his motion to reopen his direct appeal, which the State did not oppose,
petitioner urged the supreme court to consider all issues he wished to raise,
including claims raised and rejected previously on direct appeal (from both his
conviction and sentence) and claims procedurally defaulted because he had not
previously raised them. The supreme court limited its review, however, to the
issue of whether it had conducted a proper harmless error analysis. See infra
part III.A. Because the State failed to oppose his motion to reopen the direct
appeal, petitioner now contends that the supreme court erred in not considering
all of the issues he raised in that motion, and therefore that this court should
now review all of his claims of error. We are not persuaded. The supreme court
was certainly within its province in limiting the scope of the reopened direct
appeal, notwithstanding petitioner's request that the court perform a more
comprehensive review, and we will not disturb its judgment.7

12

Having concluded that the district court did not err in honoring Florida's
procedural default rule, we proceed to the claims the district court rejected on
the merits.8 In assessing each of petitioner's claims, we review the district
court's findings of fact for clear error, while we review all questions of law de
novo. See Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir.1998). We begin, in
part II, with the challenge to petitioner's conviction.

II.
13

Petitioner contends that the district court should have set aside his murder

conviction and ordered his release unless the State afforded him a new trial, on
the ground that his counsel's performance in the guilt phase of the case fell
below the standard required of counsel under the Sixth and Fourteenth
Amendments.9 The district court concluded that the record of petitioner's
criminal prosecution in the guilt phase foreclosed this ground as a matter of
law; therefore, the court did not hold an evidentiary hearing on the ineffective
assistance claim.
14

Whether petitioner's counsel were ineffective is a mixed question of law and

fact subject to de novo review. See Mills v. Singletary, 161 F.3d 1273, 1285
(11th Cir.1998). To be entitled to an evidentiary hearing on this matter,
petitioner must proffer evidence that, if true, would entitle him to relief. See
Baldwin v. Johnson, 152 F.3d 1304, 1312 (11th Cir.1998). To obtain relief, he
must demonstrate both (1) that his counsel's performance was deficient, in that
it "fell below an objective standard of reasonableness," and (2) that he suffered
prejudice as a result of that deficient performance. See Mills, 161 F.3d at 1285
(quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052,
2064, 2068, 80 L.Ed.2d 674 (1984)). Prejudice is defined as "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct.
at 2068.

15

In his testimony before the jury during the guilt phase of the trial, petitioner
said that he was under the influence of cocaine at the time of the bank robbery.
In his habeas petition to the district court, petitioner alleged that he was so high
when the robbery occurred that he did not know what he was doing. According
to his petition, he began snorting cocaine the morning of the robbery and
continued to snort until he and Jackson arrived at the bank, around 2:00 p.m.
Allegedly, several witnesses, including Jackson, would attest to his cocaine use
over an extended period of time, although, with the exception of Jackson, none
could testify that he used drugs that day.10 Petitioner's trial attorneys did not
seek an instruction informing the jury that if it believed petitioner's testimony
that he was under the influence of cocaine when he committed the murder, it
could consider that fact in determining whether petitioner possessed the
criminal intent required for conviction. Petitioner contends that counsel did not
seek such instruction because they failed to prepare for such defense and to
adduce the evidence that would have established it.

16

According to petitioner, counsel were deficient in two respects. First, they

failed to have him elaborate concerning the amount of cocaine he had snorted
before he entered the bank, and they failed to call Jackson to the stand; Jackson
would have corroborated his testimony that he was under the influence of

cocaine at the time of the offense. Other witnesses (those referred to above)
could have been called who would have testified that petitioner was an habitual
drug user, thus creating the inference that he was testifying truthfully when he
said that he acted under the influence of cocaine. Second, counsel failed to
discredit the State's chemist, who testified that the analysis of petitioner's blood
that was taken (an undisclosed period of time) after his arrest showed no
evidence of cocaine. Petitioner submits that the test the chemist performed
would not show the small recreational amounts of cocaine he had ingested that
day. In sum, had counsel elicited from petitioner the amount of cocaine he had
snorted the day of the robbery, presented witnesses to attest to petitioner's drug
habit, and demonstrated the inadequacy of the chemist's blood analysis, the
court would have been required to charge the jury that voluntary intoxication
could negate criminal intent.
17

The district court, bypassing Strickland 's first prong, moved directly to the
prejudice prong of petitioner's ineffective assistance claim and concluded that
petitioner's allegations demonstrated no prejudice. They failed to demonstrate a
reasonable probability that, absent counsel's alleged deficiency, the outcome of
the trial would have been different.

18

We agree with the district court. The only evidence petitioner proffered (in his
petition) regarding his drug use that is even remotely relevant to our inquiry-that he used some amount of cocaine during the hours preceding the robbery
and murder--would not warrant a jury instruction regarding voluntary
intoxication. While petitioner testified at trial that he was under the influence of
cocaine when he arrived at the bank, nothing in the testimony he has proffered
in his petition (and that counsel should have introduced) would permit a jury to
find that he was "so intoxicated that he [was] unable to form an intent to kill."
See Wiley v. Wainwright, 793 F.2d 1190, 1194 (11th Cir.1986) (noting that
under Florida law the person proffering voluntary intoxication as a defense
must make such a showing). In sum, no evidentiary hearing is warranted on the
issue of counsel's effectiveness at the guilt phase of the trial, for the proffered
testimony, even if true, would not entitle petitioner to relief. See Baldwin, 152
F.3d at 1312.

III.
19

We now address petitioner's challenges regarding the sentencing phase of his

case. He presents the following claims: (1) that the Florida Supreme Court
conducted a deficient harmless error analysis after striking one of the
aggravating factors found by the trial judge in imposing the death sentence; (2)
that the trial court erred (and the supreme court failed to cure the error) in not

placing in the sentencing balance all of the non-statutory mitigating evidence

petitioner presented; (3) that his counsel's performance was constitutionally
deficient; (4) that the trial court improperly refused to permit petitioner to
present certain mitigating evidence to the jury, in violation of Lockett v. Ohio,
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); (5) that the trial court
failed to instruct the jury on the statutory mitigating circumstance of
"substantial domination," see Fla. Stat. ch. 921.141(6)(e) (1997);11 and (6) that
the prosecution made improper remarks in the presence of the jury that
rendered petitioner's sentence unreliable and thus fundamentally unfair. We
address these claims in order.
A.
20

Petitioner claims that the Florida Supreme Court, after invalidating one of the
aggravating factors the trial judge relied upon in imposing the death penalty
(the cold, calculated, and premeditated factor), failed to conduct the proper
harmless error analysis prescribed by Sochor v. Florida, 504 U.S. 527, 539-40,
112 S.Ct. 2114, 2122-23, 119 L.Ed.2d 326 (1992), and Clemons v. Mississippi,
494 U.S. 738, 752-54, 110 S.Ct. 1441, 1450-51, 108 L.Ed.2d 725 (1990).
Petitioner further claims that the trial court erred in failing to place unrebutted
nonstatutory mitigating factors into the sentencing balance, and that the
supreme court failed to cure that error in its review of his sentence. See Parker
v. Dugger, 498 U.S. 308, 322-23, 111 S.Ct. 731, 740, 112 L.Ed.2d 812 (1991).

21

The district court has twice had occasion to examine petitioner's claims. At its
initial proceeding, the district court granted the petitioner's habeas writ,
concluding that the Florida Supreme Court's harmless error analysis was
deficient because it had deferred to the trial court's erroneous conclusion that
the evidence regarding petitioner's background was insufficient to establish
mitigation. The district court also questioned the supreme court's decision that
consideration of the erroneous "cold, calculated, and premeditated" aggravating
circumstance at sentencing was harmless.12 Thereafter, the Florida Supreme
Court reopened petitioner's direct appeal for the purpose of addressing the
district court's concerns. The supreme court concluded that any error on the part
of the trial judge was "harmless beyond a reasonable doubt," and "again [held]
that death is the appropriate sentence in this case." Hill v. State, 643 So.2d
1071, 1074 (Fla.1994). Following the supreme court's decision, the district
court again entertained arguments on whether to grant the writ because of the
supreme court's deficient harmless error analysis; the district court denied the
writ, and petitioner now appeals.

22

In order to determine whether either of petitioner's first two claims (of

deficiency in the sentencing phase of his case) have merit, we must examine
what the Florida Supreme Court actually did in affirming the death sentence
after reopening petitioner's direct appeal. The supreme court reopened the direct
appeal for a limited purpose--to "reexamine the harmless error analysis [it]
conducted in [its previous opinion] based on the entire record of this case." Id.
The court proceeded as follows:
23 indicated previously, four of the five aggravating circumstances found by the
As
trial judge remain valid. Even when we consider the statutory mitigating
circumstance of [petitioner's] age of twenty-three at the time the murder was
committed and the uncontroverted evidence of non-statutory mitigating
circumstances presented by [petitioner] at sentencing regarding his background, we
must conclude that the trial judge's error in finding that the murder was cold,
calculated, and premeditated, was harmless beyond a reasonable doubt. In
aggravation, the evidence reflects that [petitioner], during the course of a robbery,
killed a police officer so that he and his accomplice could escape prosecution.
Moreover, [petitioner] had previously been convicted of robbery with a firearm, and,
in this case, he knowingly created a great risk of death to many persons by firing a
number of shots in a populated area.
24

Id.

25

The court, with this language, clearly was attempting to satisfy the "harmless
beyond a reasonable doubt" test of Chapman; however, it continued with its
analysis, stating: "We again hold that death is the appropriate sentence in this
case because no reasonable possibility exists that the evidence presented in
mitigation, such as [petitioner's] age, his good work history, and his helpful and
nonviolent nature, is sufficient to outweigh the four valid aggravating
circumstances." Id. (footnote omitted). Not only was this language superfluous
in the context of the harmless error analysis, it was of a different nature
altogether. The phrase "[w]e again hold that death is the appropriate sentence"
indicates a fundamentally different analysis from the previous harmless error
analysis; it indicates that the supreme court made its own judgment as to
petitioner's sentence.13 The court made an independent assessment of the
aggravating and mitigating circumstances in petitioner's case, weighed those
factors against each other, and reached the conclusion that death was the
appropriate sentence. We therefore conclude that the Florida Supreme Court
reached alternative holdings in petitioner's case: first, that the trial judge's error
in using the "cold, calculated, and premeditated" aggravating factor in
sentencing petitioner was harmless beyond a reasonable doubt; and second,
that, after reweighing the valid aggravating circumstances and all the mitigating
factors, death was the appropriate sentence in petitioner's case.

26

Supreme Court precedent is clear that a reviewing court may conduct either
type of analysis the Florida Supreme Court utilized in affirming petitioner's
death sentence. See Sochor, 504 U.S. at 532, 112 S.Ct. at 2119 ("While federal
law does not require the state appellate court [in a weighing state like Florida]
to remand for resentencing [after concluding that the trial court included in its
weighing process an invalid aggravating factor], it must, short of remand, either
itself reweigh without the invalid aggravating factor or determine that weighing
the invalid factor was harmless error."); Parker, 498 U.S. at 320-21, 111 S.Ct.
at 739. That being the case, the Florida Supreme Court acted within its
province when it reweighed the aggravating and mitigating circumstances in
petitioner's case and concluded that death was the appropriate sentence. By
reweighing all the factors, petitioner received all he could hope for--an
independent weighing of the aggravating and mitigating circumstances in his
case, which excluded the invalid aggravating circumstance (that the murder was
cold, calculated, and premeditated) and included all of the nonstatutory
mitigating evidence he presented during sentencing phase of his case. We
therefore will not upset the decision of the Florida Supreme Court on this
matter.14

B.
27

Petitioner contends that his counsel were ineffective during the sentencing
phase of his trial, primarily due to their failure to offer evidence of petitioner's
drug use on the day of the murder--this time as a mitigating circumstance rather
than as a defense to premeditated murder. Petitioner contends further that
counsel were ineffective for failing to present background evidence to the
court-appointed psychologist (thereby "causing" an incorrect evaluation) and
for failing to pursue evidence of his history of drug and alcohol abuse and
evidence of his abusive and neglect-ridden childhood. The district court
concluded that none of this evidence was "so compelling that it would have
changed the result of the proceedings in this case."

28

We agree. As we indicated earlier, Strickland requires that a petitioner

demonstrate a reasonable probability that the proffered evidence would have
changed the result in the case. See Strickland, 466 U.S. at 694, 104 S.Ct. at
2068. The evidence petitioner proffered in his habeas petition regarding his
drug use the day of the murder is largely irrelevant. It does not matter that he
was seen with a bag of cocaine that morning; nor does it matter that Jackson
had supplied petitioner with drugs prior to the commission of the crime; nor is
it enough to allege that another drug test (which defense counsel could not have
obtained) may have shown a smaller, "recreational" amount of cocaine in his
blood on the day of the robbery. Petitioner has not, and cannot, show that there

was any measurable amount of cocaine in his blood. In the end, the only
evidence he has proffered that would support his claim that he was intoxicated
during the robbery is the statement of his accomplice that they had been using
drugs that day. That evidence is insufficient to demonstrate a reasonable
probability that, had counsel put that evidence before the jury, it would not
have recommended, and the trial court would not have imposed, a death
sentence. We reach the same result as to petitioner's claim that counsel failed to
pursue evidence of his childhood neglect. The extent of his proffer in this
regard is that his mother often gave him "good whippings." While times have
changed and corporal punishment is becoming less accepted as an appropriate
means of disciplining a child, we cannot reasonably conclude that counsel's
failure to pursue this evidence affected petitioner's sentence.
29

As to petitioner's argument that counsel failed to provide the psychologist

evaluating petitioner's mental state with vital information regarding his
background, the district court changed its course and concluded that petitioner
failed to satisfy the deficiency prong of the Strickland test. See id. at 687-88,
104 S.Ct. at 2064-65. We cannot fault the court's conclusion. Given the time
the court-appointed psychologist invested in his evaluation of petitioner and his
knowledge that mitigating factors were vital to petitioner's defense, we cannot
conclude that counsel were deficient for failing to provide their expert witness
with information that, if it existed, the witness was in a position to discover.

30

Because the petitioner could not satisfy the requirements of Strickland, he

cannot demonstrate that the evidence proffered, if true, would entitle him to
relief. Thus, he is not entitled to an evidentiary hearing on this claim.

C.
31

Petitioner contends that his sentencing hearing was constitutionally infirm, in

that some nonstatutory mitigating evidence was kept from the jury by the trial
judge in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95
L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978). The trial judge sustained the State's objection to testimony
petitioner sought to elicit from his parents. He proposed that his mother testify
about the task of raising fourteen children, and the effect it had on him, and that
his father testify regarding his absence from the home throughout petitioner's
formative years due to job responsibilities. The district court sustained the
State's objection on the ground that the proposed testimony was irrelevant. The
district court drew a contrary conclusion; the testimony was neither irrelevant
nor repetitive, and thus should have been admitted. The district court held,
however, that the exclusion of the evidence was harmless error. In its view, the

"disallowed testimony was 'insignificant' when viewed in light of the other

mitigating evidence tendered." We agree.
32

As the district court noted, during the sentencing phase of the trial, the jury was
informed that petitioner's mother had nine children of her own, and that
petitioner from an early age took on the responsibility of providing care and
support for his family. While the trial judge should have permitted petitioner to
introduce his parents' excluded testimony, we are confident that the marginal
value of such testimony would have been so insignificant that its exclusion,
although improper, did not affect the outcome of the sentencing phase of the
trial. The trial judge's mistake, therefore, was harmless error.15

D.
33

Petitioner contends that the trial court erred when it denied his request that the
court instruct the jury on one of Florida's statutory mitigating factors--that "
[t]he defendant acted under ... the substantial domination of another person."
Fla. Stat. ch. 921.141(6)(e).16 In petitioner's view, the evidence before the jury
warranted the instruction. He contends that the following facts, established by
him and Jackson,17 yielded the inference that he acted under Jackson's
domination and thus required the "substantial domination" instruction. Both
men testified that Jackson decided that they needed to rob a bank to get money;
that Jackson bought sunglasses to disguise their appearance; that Jackson gave
the signal for the robbery to begin; that Jackson directed petitioner's
movements within the bank; and that Jackson called petitioner back from the
bank's safe (where petitioner had gone in search of more money) when he
realized the plan was failing.

34

At the charge conference held at the conclusion of the evidence in the

sentencing phase of the trial, petitioner requested that the court instruct the jury
on four statutory mitigating circumstances, including the instruction on
substantial domination: (1) "the age of the defendant at the time of the crime,"
(2) "the defendant was an accomplice in the capital felony committed by
another person and his ... participation was relatively minor," (3) "the defendant
acted ... under the substantial domination of another person," and (4) "the
capacity of the defendant to appreciate the criminality of his ... conduct or to
conform his ... conduct to the requirements of law was substantially impaired."
Fla. Stat. ch. 921.141(6)(d), (e), (f), and (g).18 The court gave all but the third
request.

35

Whether the evidence was sufficient to require an instruction on substantial

domination at the moment petitioner committed the murder turns on whether a

reasonable jury could have found that petitioner was under Jackson's substantial
domination when he exited the rear of the bank, then walked around to the front
of the bank where two officers were subduing Jackson, told the officers to
"halt," and when one of the officers spun around with a gun in hand, shot both
officers.19
36

What constitutes substantial domination within the meaning of Fla. Stat. ch.
921.141(6)(e) is a question of Florida law. The Florida Supreme Court has
spoken to the issue on several occasions. In Groover v. State, 458 So.2d 226,
229 (Fla.1984), the court discussed the circumstances that could permit the
inference that the perpetrator of the crime acted under the substantial
domination of another. The court recognized that threats of violence or death
from one party may support the inference that the threatened party was under
the substantial domination of the other party; such threats would not, however,
mandate such an inference. Id. Other circumstantial facts that might yield an
inference of substantial domination would be if the defendant was a follower, if
he looked up to his accomplice, or if the defendant's accomplice was the
dominant figure in their relationship. See Raleigh v. State, 705 So.2d 1324,
1330 (Fla.1997). The Groover court also highlighted circumstances that would
rebut the inference of substantial domination, such as the fact that both parties
were friends, that at times during the offense each of the defendants was armed
while the other was not, and that the defendant claiming to have been
dominated could have, while armed, left the scene without threat of harm to
himself. Groover, 458 So.2d at 229. In Valdes v. State, 626 So.2d 1316, 1324
(Fla.1993), the court again provided guidance as to the sort of circumstances
that will support a claim of substantial domination; factors such as providing
the murder weapon and acting in concert with another (as opposed, presumably,
to acting at the direction of another) will belie the existence of any substantial
domination. See also Raleigh, 705 So.2d at 1330 (quoting sentencing court for
the conclusion that a defendant who was the principal perpetrator in a murder
was not under the substantial domination of another).

37

The trial court refused to give the requested instruction at issue because the
evidence as a whole did not permit the inference that petitioner was acting
under the substantial domination of Jackson. The Florida Supreme Court,
addressing the question whether the evidence was sufficient to warrant the
instruction, agreed. In doing so, it noted the following facts that indicated that
petitioner, not Jackson, was the leader in the criminal activity:

38

The unrefuted facts in this record establish that, when the twenty-three-year-old
[petitioner] and the eighteen-year-old Jackson entered the bank, Hill was armed
and Jackson was not. [Petitioner] did most of the talking, demanded money,

and threatened that he would "blow some brains out." [Petitioner] also
physically abused a bank teller by kicking him and pulling him by the hair
while he lay on the floor. Finally, [petitioner] chose to help Jackson rather than
utilize his opportunity to escape, and later testified that neither he nor Jackson
was a leader, claiming, "We did it together." Clearly, under these
circumstances, we find the "substantial domination" mitigating factor does not
apply.
39

Hill v. State, 515 So.2d at 178.

40

On habeas review, the district court concluded that the trial court's failure to
give a substantial domination instruction, if error, was harmless. The court
reached this conclusion because of two instructions the trial judge did give: (1)
that the sentencing jury could consider, if established by the evidence, another
statutory mitigating factor--that "[t]he defendant was an accomplice in the
capital felony committed by another person and his or her participation was
relatively minor;" 20 and (2) that the sentencing jury could consider (in addition
to any statutory mitigating circumstances established in the record) "any other
circumstance of the offense" or "any other aspect of the defendant's character or
record" (i.e., non-statutory mitigating circumstances) in determining whether to
recommend a sentence of life imprisonment or death.

41

We find no error in the trial court's refusal to give the substantial domination
instruction; in addition, we agree with the district court, albeit for a separate
reason, that if there was error, it was harmless. We find no error because the
trial court followed Florida law, as interpreted by the Florida Supreme Court.
Considering the court's precedent, the circumstantial evidence on which
petitioner based his request for the instruction simply did not rise to the level of
substantial domination. As for the harmless error issue, we note that the court's
instruction on non-mitigating statutory circumstances permitted the jury to take
into account, and give it such weight as it deemed appropriate, petitioner's and
Jackson's testimony that it was Jackson who was the brains behind the robbery.
Petitioner's counsel utilized this instruction in urging the jury to have mercy on
petitioner because Jackson, who had received a life sentence, was the one who
engineered the robbery. For these reasons, we affirm the district court's denial
of habeas relief on petitioner's substantial domination claim.

E.
42

Finally, petitioner contends that the prosecutor made improper and

inflammatory comments before the jury during the sentencing phase of his trial.
The prosecutor told the jury that petitioner did not deserve the same life

sentence Jackson received because petitioner elected to stand on his not guilty
plea and to put the State to its proof at a trial. The prosecutor ended his closing
statement with the following remarks:
I43want to end with this, if I can have one minute to tell you this. The more things
change, the more they stay the same. And in America things haven't changed.
Processes have changed a lot, but things are still the same. 150 years ago if the
defendant left a town and stole a horse to come over to Pensacola, some desperado
robbing a woman of the horse and he rode here with a companion, and they robbed a
bank in the main street of the town, and they were seen by ... many people in the
main street of town, and the deputy sheriff came up to arrest the defendant's buddy,
and the defendant shot the deputy in the back, they would have strung him up from
the nearest tree that day.
44 the process has changed. He now has a jury trial. It's now taking years to do it,
Now,
but things still remain the same. The crime calls for the sternest punishment for
killing the deputy. He must hang from a tree. We're more merciful now. We'll shock
him until he's dead. But that is the sentence that is appropriate in this case under the
law. Thank you.
45

The State has not contended that such comments were appropriate; rather, its
position is that the comments, if misguided, were harmless. The district court
agreed, stating: "[t]here being no reasonable probability that, but for the
prosecutor's improper remarks, the verdict or sentence would have been
different, Hill's request for habeas corpus relief on the basis of improper
prosecutorial comment must be denied."

46

The prosecutor's comments certainly were crass and manifestly inappropriate;

they did not, however, so taint the proceedings as to render petitioner's death
sentence constitutionally deficient. There was ample evidence in the record to
support a sentence of death, and the trial judge charged the jury to make its
decision on the basis of the evidence alone. That being the case, we will not
upset the determination of the Florida Supreme Court that the prosecutor's
conduct did not affect petitioner's sentence.

IV.
47

For the foregoing reasons, the district court's denial of habeas relief is

48

AFFIRMED.

The grand jury also indicted Jackson for the same offenses. Prior to trial,
Jackson and the State entered into a plea agreement, under which Jackson pled
guilty to first degree murder and was sentenced to prison for life. He
subsequently testified as a defense witness in the sentencing phase of
petitioner's trial

In Florida, once a defendant is convicted of capital murder, the trial court must
engage in a separate sentencing phase to determine whether death is in fact the
appropriate sentence. In order for the defendant to receive the death penalty,
the State must establish the existence of one or more statutory aggravating
factors under Fla. Stat. ch. 921.141(5) (1997). If aggravating circumstances are
established, the defendant may offer evidence of the existence of one or more
statutory mitigating factors, see Fla. Stat. ch. 921.141(6), and any other nonstatutory mitigating evidence he wishes to introduce. The jury, which renders
an advisory sentence, and the trial judge, who decides the actual sentence, must
weigh the aggravating and mitigating circumstances against each other in
determining the proper sentence
Before sentencing petitioner, the court in this case found that the evidence
established five aggravating circumstances: (1) that the defendant had been
convicted of a prior felony involving the threat of violence to another; (2) in
committing the murder, the defendant knowingly created a great risk of death to
many persons; (3) the murder was committed while the defendant was fleeing
from an attempted robbery; (4) the murder was committed for the purpose of
avoiding arrest; and (5) the murder was committed in a "cold, calculated, and
premeditated manner." See Fla. Stat. ch. 921.141(5)(b), (c), (d), (e), (I). The
court also found one statutory mitigating circumstance, the defendant's young
age, 23. See Fla. Stat. ch. 921.141(6)(g). Finally, although petitioner had
presented several items of non-statutory mitigating evidence, all relating to his
upbringing and background, the court found that such evidence and petitioner's
age "d[id] little to mitigate the circumstances of the killing." Concluding that
the aggravating circumstances outweighed the mitigating circumstances in the
case, the court imposed the death penalty.
The court imposed prison sentences for the other offenses--attempted murder,
armed robbery, and possession of a firearm during commission of a felony--of
which petitioner was convicted. Neither those convictions nor the
corresponding sentences are before us.

The trial judge found the same aggravating circumstances the previous judge
had found. See supra note 2. He also found a statutory mitigating circumstance

in the defendant's age. After summarizing the other evidence petitioner adduced
in mitigation, all of a non-statutory nature, the court found that it was
insufficient to amount to mitigation. The court disposed of this evidence with
the following statement on the record:
"Any other aspect of the defendant's character or record and any other
circumstances of the offense--several witnesses, James Wilson knew the
defendant for 19 years and was a school mate; Lucille Tillie knew the
defendant and his family for 19 years; Miss Petway knew the defendant and his
family for a number of years in Mobile, since 1968; Grace Singleton, 79 years
old, knew the defendant when he was a little boy; Patsy McCaskill, his sisterin-law, knew him about six years; and the mother and father of the defendant
testified as to the particulars of his character when he was a boy for honesty and
peacefulness. On cross-examination Tillie didn't know the defendant had been
arrested for robbery in Mobile, as did Petway. Singleton was not aware of the
robbery. McCaskill did not know about the robbery. The Court is of the
opinion that this evidence is insufficient to support [the finding of any nonstatutory mitigating factors]."
Thereafter, the court balanced the aggravating circumstances against the
defendant's age, found that the former outweighed the latter, and imposed a
death sentence.
4

Petitioner challenged his conviction and/or sentence on numerous constitutional

grounds, some of which we have restated for sake of clarity: (1) the trial court's
refusal to grant him a change of venue denied him a fair trial; (2) the
prosecutor's comments in the presence of the jury during the guilt and
sentencing phases of the case denied him a fair trial; (3) the prosecutor
knowingly presented false testimony to the jury during the guilt phase of the
trial; (4) the trial court erred when it refused to disclose questions the jury
submitted to the court during deliberations in the sentencing phase of the trial;
(5) trial counsel's performance was ineffective in both phases of the trial; (6)
the trial court, sustaining the State's objection on relevancy grounds, precluded
the jury from receiving non-statutory mitigating evidence concerning
petitioner's background; (7) the trial court, in imposing sentence, refused to
consider nonstatutory mitigating evidence concerning petitioner's background;
(8) the trial court refused petitioner's request that it instruct the jury that it
could consider as a statutory mitigating circumstance whether petitioner "acted
... under the substantial domination of [Jackson]," Fla. Stat. ch. 921.141(6)(e)
(1997); (9) the trial court improperly shifted the burden of proof to petitioner to
demonstrate that the death sentence was inappropriate; (10) in selecting the
jury to retry the sentencing phase of petitioner's case, the trial court excluded
prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968); (11) in selecting the jury to retry the
sentencing phase of petitioner's case, the prosecutor precluded blacks from
serving on the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986); (12) the cold, calculated, and premeditated
aggravating circumstance was unconstitutionally vague as applied in violation
of the Eighth and Fourteenth Amendments; (13) the trial court erred in
instructing the jury that sympathy and mercy were irrelevant; (14) the trial
court erred in permitting the jury to "double" aggravating circumstances in
making its sentencing recommendation; (15) petitioner's sentence was based on
an unconstitutional prior conviction; (16) the trial court erred in permitting the
State to present to the jury in both phases of the trial evidence of petitioner's
"other crimes and bad character"; (17) the state court invoked non-existing
procedural bars to preclude review of some of petitioner's claims of trial and
appellate error; and (18) the Florida Supreme Court erred in refusing to remand
his case for resentencing after striking down one of the aggravating
circumstances (cold, calculated, and premeditated circumstance) relied on by
the trial judge in imposing the death sentence
5

With respect to the claims (4), (9), (11), (12), (13), (14), and (15) listed in note
4, supra, the district court denied relief on the ground that the claims were
procedurally defaulted. That is, petitioner had not presented them to the state
courts seasonably as required by state law. The court denied relief on the
remaining claims listed in note 4, supra, with the exception of claims (7) (on
which the court granted relief) and (18) (which the court did not adjudicate), on
the ground that the record foreclosed them as a matter of law

The district court found the following non-statutory factors in the record: (1)
that petitioner was known by his neighbors and family to be a caring and
nonviolent person; (2) that, as a teenager, he volunteered to take care of a
family friend's brain-damaged child and helped a disabled, elderly neighbor by
taking her to church and running errands for her; (3) that he had a trouble-free
history throughout his years in school and in the neighborhood, until age
twenty-three; (4) that he held steady employment as a cook from the time he
was in the ninth grade until he turned to drugs and crime at the age of twentythree; (5) that he consistently helped his parents, doing chores around the house
and contributing some of his earnings toward support of the large family; and
(6) that he attended school until the twelfth grade but never progressed beyond
a fifth grade level in reading and verbal ability
With respect to the statutory mitigating circumstance provided by Fla. Stat. ch.
921.141(6)(e) (1997), "Substantial Domination," the district court concluded
that if the trial court committed error in failing to instruct the jury on that
mitigating circumstance, the error was harmless. The court did not mention the

possibility that petitioner was acting under Jackson's domination in listing the
mitigating circumstances that the trial court had overlooked in imposing
sentence.
7

It is obvious from a reading of the district court's order granting the writ that
the court contemplated one of two results: either the Florida Supreme Court
would conduct the harmless error analysis Parker requires, or petitioner would
be accorded a new sentencing proceeding in the state trial court. The former
result obtained when petitioner, with the States's consent, moved the supreme
court to reopen the direct appeal in order to review his sentence

The claims the district court properly declared procedurally defaulted are as
follows: (1) that the trial judge improperly refused to inform petitioner of the
substance of two questions the jury asked during deliberations in the sentencing
phase of the trial (claim 4); (2) that the trial court, in the sentencing phase,
permitted the prosecutor peremptorily to challenge prospective jurors on the
basis of their race (claim 11); and (3) that the trial court improperly doubled
two aggravating factors at the sentencing phase of petitioner's trial (claim 14).
A fourth claim--that one or more jurors in the sentencing phase of the trial had a
predisposition in favor of the death penalty--is also defaulted, because
petitioner failed to raise that issue during his direct appeal. In fact, petitioner did
not even raise that issue in his initial petition for habeas relief; rather, he raised
it for the first time in his reopened direct appeal
Because petitioner has failed to demonstrate cause for his defaults and resulting
prejudice, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565,
115 L.Ed.2d 640 (1991), we therefore do not discuss those claims further in
this opinion.

The Sixth Amendment guarantees every criminal defendant the right to have
"the assistance of counsel for his defense." The Supreme Court has interpreted
this Amendment to require more than just the physical presence of an attorney
with the accused; instead, the Sixth Amendment requires meaningful
representation--"the right to counsel is the right to the effective assistance of
counsel." Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052,
2063, 80 L.Ed.2d 674 (1984). The Fourteenth Amendment makes the Sixth
Amendment applicable in state court

10

Petitioner also testified at the sentencing phase of his trial. There, contrary to
what these witness would have said if called to testify, he told the jury "I
haven't been doing [cocaine] long, and I never run into it, you know. I was
trying something new."

11

In both his petition for habeas relief and his brief on appeal petitioner combined

claims (4) and (5) into one "Lockett " claim. Claim (5), however, does not
involve evidence that defense should have been permitted to put before the jury
and that the jury should have been permitted to consider; all the evidence
tending to support petitioner's claim of substantial domination (by Jackson) was
properly before the jury (and the jury was instructed that it could consider any
evidence that tended to mitigate defendant's criminal actions). Rather, claim (5)
merely involves the failure of the trial court to give a jury instruction on the
statutory mitigating factor of "substantial domination." Because claims (4) and
(5) are distinct, we discuss them separately in this opinion
12

The court withheld judgment, however, on whether the supreme court's

analysis satisfied the United States Supreme Court's requirements as to
harmless error analysis because it was already granting the writ on other
grounds. In Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 1451,
108 L.Ed.2d 725 (1990), the Supreme Court stated that it is constitutionally
permissible for an appellate court in capital proceedings in which error has
occurred to engage in either (1) a reweighing of the aggravating and mitigating
circumstances or (2) a harmless error analysis. In Sochor v. Florida, 504 U.S. at
539-40, 112 S.Ct. at 2123, the Supreme Court, on direct appeal, concluded that
the correct harmless error analysis to be conducted by a state supreme court is
the heightened "harmless beyond a reasonable doubt standard" of Chapman v.
California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).
Subsequent to the Sochor decision, the Court adopted a less stringent harmless
error analysis for collateral review of "constitutional trial error" (constitutional
errors made during the trial, such as commenting on a defendant's post-Miranda
silence in front of the jury, as opposed to "structural defects in the constitution
of the trial mechanism," such as deprivation of counsel). See Brecht v.
Abrahamson, 507 U.S. 619, 629, 637-38, 113 S.Ct. 1710, 1717, 1721-22, 123
L.Ed.2d 353 (1993). The Brecht decision is inapposite in our collateral review,
however, because we are not conducting the same review of the state trial court
proceedings that the Florida Supreme Court conducted (which the Brecht Court
was trying to avoid); rather, we are reviewing whether the Florida Supreme
Court conducted the proper analysis in its review of the trial court proceedings,
as prescribed by the Supreme Court in Clemons and Sochor. Of course, because
we conclude that the Florida Supreme Court reweighed the aggravating and
mitigating circumstances in this case (in accordance with the first alternative in
Clemons ), we need not discuss the sufficiency of the Florida Supreme Court's
harmless error analysis

13

We realize that the Florida Supreme Court has stated that it does not
independently reweigh aggravating and mitigating circumstances when
reviewing a death sentence. See, e.g., Hudson v. State, 538 So.2d 829, 831
(Fla.1989); Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.1981). The

Florida Supreme Court certainly has the power to reconsider its role in
reviewing capital sentences, however, for it has the last word as to the nature of
its role. Given the clear and qualitative language of its opinion as to the
appropriateness of the sentence in petitioner's case, we conclude that the
supreme court did in fact reweigh the aggravating and mitigating circumstances
in petitioner's case. Both the Supreme Court and this court have noted that, on
occasion, the Florida Supreme Court has reweighed the aggravating and
mitigating circumstances in determining that death is the appropriate sentence
in the case. See Wainwright v. Goode, 464 U.S. 78, 86, 104 S.Ct. 378, 383, 78
L.Ed.2d 187 (1983); Bolender v. Singletary, 16 F.3d 1547, 1568 (11th
Cir.1994)
14

Given our holding that the Florida Supreme Court adequately reweighed the
aggravating and mitigating circumstances in petitioner's case, we need not pass
judgment on the sufficiency of the supreme court's harmless error analysis

15

As stated in note 12, supra, the Supreme Court has adopted a less stringent test
for harmless error to be utilized by federal courts conducting collateral review
of state proceedings. See Brecht, 507 U.S. at 637-38, 113 S.Ct. at 1721-22. The
test adopted in Brecht is whether "the error 'had [a] substantial and injurious
effect or influence in determining the jury's verdict.' " Id. at 637, 113 S.Ct. at
1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239,
1253, 90 L.Ed.2d 1557 (1946)). The purpose of the less stringent standard is
clear: collateral review is designed only to "afford relief to those whom society
has grievously wronged." Id. at 637, 113 S.Ct. at 1721 (internal quotation
marks omitted). It is not designed to apply the same standards of review as
those applied on direct review in a case, because applying those same standards
would undermine the state's interest in finality of its judgments and infringe
upon the state's sovereignty over its own criminal matters

16

The error, according to petitioner, tainted the jury's recommendation that he

receive the death sentence and therefore rendered unreliable the sentence the
trial court imposed, in violation of the Eighth and Fourteenth Amendments

17

Petitioner testified in both the guilt and sentencing phases of the trial; Jackson
testified only in the sentencing phase

18

The record does not contain the parties written requests for instructions, if any.
What the record contains is a transcript of the charge conference. During that
conference, the court suggested that petitioner was entitled to instructions (1)
and (4); petitioner agreed and asked for, in addition, instructions (2) and (3).
We consider the court-counsel colloquy as containing a request from petitioner
that instructions on all four statutory mitigating circumstances be given. As

noted in the text, the court gave all except (3). As for that requested instruction,
the court held that the evidence was insufficient (as a matter of law) to warrant
the instruction
19

Supreme Court precedent supports this proposition. In capital cases, the

Constitution requires the trial courts to charge the jury on a statutory mitigating
circumstance only "if the evidence so warrants." See Delo v. Lashley, 507 U.S.
272, 275, 113 S.Ct. 1222, 1224, 122 L.Ed.2d 620 (1993)

20

Fla.Stat. ch. 921.141(6)(d)